Bala Krishna Narayana, J.@mdashHeard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Samit Gopal, learned Counsel for the revisionist, Sri N.I. Jafri and Sri Anuraag Khanna, learned Counsel for the opposite party No. 1 and Sri D.R. Chaudhary, learned Government Advocate for the opposite party No. 2.
2. This applications revision has been filed by the revisionist Dr. (Mrs.) Nupur Talwar against the order dated 9.2.2011 passed by Special Judicial Magistrate (C.B.I), Ghaziabad in Special Case No. 1 of 2011 Rajesh Talwar v. Unknown u/s 302 I.P.C. P.S. S.C.B. C.B.I., Delhi by which he has taken cognizance of offences under Sections 302/34 and 201/34 I.P.C. and issued process u/s 204 of the Code of Criminal Procedure to the revisionist to face trial for the aforementioned offences.
3. Learned Counsel for the opposite parties have stated that they do not want to file any counter-affidavit and this application in revision may be disposed of at this stage on the basis of the materials brought on record by the revisionist.
The facts of the case as stated in the affidavit filed alongwith memorandum of revision are, following the discovery of the gruesome murder of Aarushi aged about 14 years daughter of the revisionist Dr. Nupur Talwar and co-accused Dr. Rajesh Talwar, in her bedroom in the morning of 16.5.2008, a first information report of the incident was lodged by Dr. Rajesh Talwar at P.S. Sector-20, Noida at about 7.10 am on the same day, on the basis of which Case Crime No. 695 of 2008 u/s 302 I.P.C. was registered against unknown persons. The post mortem of deceased Aarushi was conducted on 16.5.2008 at about 12.00 noon. After a couple of days Hemraj the domestic help of the revisionist who was the prime suspect of the crime was also found murdered on 17th May, 2008 on the terrace of the house of Dr. Rajesh Talwar and Dr. Nupur Talwar. His post mortem conducted on 17.5.2008 at about 9.00 pm revealed that Hemraj had also been murdered about the same time as Km. Aarushi. The matter was initially investigated by the local police but subsequently vide Notification No. 1937-VI-P-3-2008-15(48) P/2008, Lucknow dated 29.5.2008, the investigation of the case was transferred to the Central Bureau of Investigation (hereinafter referred to as the C.B.I.) by the State Government. Pursuant to the matter being taken up by the C.B.I., first information report already lodged was registered as Case Crime No. RCI (S)/2008/SCR-III/CBI/New Delhi and was investigated by the C.B.I.
4. During investigation, Dr. Rajesh Talwar the husband of the revisionist was arrested on 23rd May, 2008 by the local police and was produced before the concerned Court on 24.5.2008 and was granted three days police remand which was extended till 30.5.2008. Thereafter, Dr. Rajesh Talwar was sent to judicial custody on 30.5.2008. Subsequently on an application filed by the C.B.I. u/s 169 of the Code of Criminal Procedure stating therein that the scientific results of other investigations did not seem to connect Dr. Rajesh Talwar with the crime and in that view his further judicial custody remand was not required, Dr. Rajesh Talwar was consequently granted bail on 11.7.2008. During investigation the C.B.I. arrested and interrogated three other persons, namely, Krishna, Raj Kumar and Vijay Mandal. Since, the investigation against the aforementioned three co-accused could not be completed by the C.B.I. within the period of 90 days the aforementioned Krishna, Raj Kumar and Vijay Mandal were also granted bail by the Special Judge, Ghaziabad. After investigating the matter for seemingly unending period, the C.B.I. ultimately submitted a closure report dated 29.12.2010 before the Special Judicial Magistrate (CBI), Ghaziabad under the signature of the Investigating Officer Sri A.G.L. Paul, Addl. S.P. C.B.I., Sector-2, New Delhi with a prayer that in view of the shortcomings in the evidence as detailed in the closure report it was felt that sufficient evidence was not available to prove the offence u/s 302/201 I.P.C. against Dr. Rajesh Talwar and the other co-accused beyond reasonable doubt, the case may be allowed to be closed due to insufficient evidence. Alongwith the closure report a list containing the names of 140 witnesses was enclosed. The closure report was also accompanied with the lists of documents and articles collected during investigation. Upon being noticed Dr. Rajesh Talwar in his capacity as first informant filed a protest petition dated 25.1.2011 before the Court below with a prayer that the closure report filed by the C.B.I. u/s 173(2) of the Code of Criminal Procedure be rejected and the C.B.I. be directed to investigate the matter further so that the culprits involved in the heinous crime may be apprehended and punished for their misdeeds.
The Court below after hearing the learned Counsel for the Dr. Rajesh Talwar and the C.B.I. rejected the closure report filed by the C.B.I. and issued process against Dr. (Mrs.) Nupur Talwar revisionist and Dr. Rajesh Talwar after taking cognizance.
5. Sri Gopal Swaroop Chaturvedi, learned Senior Advocate submitted that before he proceeds to assail the impugned order on merits learned Counsel for the C.B.I. be directed to disclose the definite stands which the C.B.I. proposes to take in this revision, for the reason that the C.B.I. is as much aggrieved by the impugned order as the revisionist, as the prayer made by the C.B.I. in the closure report for closing the case has been rejected by the Court below and in view of the aforesaid the C.B.I. falls within the category of a party aggrieved by the order impugned in this revision and thus, C.B.I. has no locus to oppose the prayer which has been made by the revisionist in this revision by taking a stand contrary to that taken by it before the Court below.
Substantiating his argument further Sri Gopal Chaturvedi submitted once the Investigating Officer who had investigated the matter had by filing the closure report before the Court below stated that in view of insufficient evidence the case was liable to be closed, it is not open to the C.B.I., now to take the stand before this Court that the material collected during investigation by the C.B.I. prima facie discloses the commission of offence under Sections 302/34 and 201/34 I.P.C. by the revisionist and support the impugned order.
6. Sri Gopal Chaturvedi next submitted that the Court below completely failed to appreciate and take into consideration the grounds mentioned in the protest petition highlighting the failure of the investigating agency to draw correct inferences, undisputed facts, the articles which needed further investigation and scientific investigations which could have helped the C.B.I. to nail the main culprit involved in the commission of this ghastly crime which was not done by the investigating agency.
7. Sri Chaturvedi further submitted that need for scientific investigation particularly touch DNA examination of the preserved exhibits of the case was repeatedly brought to the notice of the Director of the C.B.I. and other concerned officers by the revisionist but the investigating agency did not take any steps in conducting the same and thereby presented an incomplete investigation to the Court below and the Court below also did not properly appreciate the objection of the informant that the closure report submitted by the C.B.I. presented a picture of an incomplete investigation and there were several directions in which further investigation was required to be done but the Court below illegally rejected the prayer of the informant for further investigation as also the closure report and illegally summoned the revisionist.
Sri Gopal Chaturvedi further submitted that the reliance placed by the Court below on the statements of Dr. Rajesh Talwar and Dr. Nupur Talwar which were wholly inadmissible against them in view of Section 25 of the Indian Evidence Act for the purpose of coming to the conclusion that commission of the offence by the revisionist and her husband Dr. Rajesh Talwar was prima facie disclosed has totally vitiated the impugned order.
8. Sri Gopal Chaturvedi next submitted that one very important aspect of the matter which was totally over looked by the Court below in its zeal to take cognizance and issue process against the revisionist was that the revisionist Dr. Nupur Talwar was never cited as an accused either in the first information report or arraigned as an accused by the U.P. Police or the C.B.I. nor she was arrested and detained and even the Investigating Officer of the C.B.I. who has filed the closure report before the Court below has neither referred to the revisionist as an accused anywhere nor her name finds mention either in columns 2 and 3 of the closure report.
9. Sri Gopal Chaturvedi further submitted that the Court taking cognizance u/s 190(a) of Code of Criminal Procedure of an offence is empowered to issue process u/s 204 Code of Criminal Procedure only against such persons who have been cited or arrayed as accused either in the first information report or during the investigation and whose names appear either under column 2 or column 3 of the police report filed u/s 173(3) of Code of Criminal Procedure Admittedly, the revisionist''s name is conspicuous by its absence in either of the two columns and hence, the Court below clearly exceeded its jurisdiction in issuing process against the revisionist to face trial for the offence punishable under Sections 302/34 and 201/34 I.P.C.
10. Sri Gopal Chaturvedi also submitted that a person who has not been arrayed as accused either in the FIR or during investigation can be summoned by the Court only at the stage of Section 319 Code of Criminal Procedure and not before that.
11. Sri Gopal Chaturvedi also submitted that although there was no evidence on record indicating at the complicity of the revisionist as a participant in the crime, yet the Court below illegally summoned the revisionist.
12. Sri Chaturvedi next submitted that once co-accused Dr. Rajesh Talwar had by the facts stated in the protest petition filed by him against the closure report before the Court below together with the documents and various communications appended thereto had clearly demonstrated that the investigation conducted by the C.B.I. was half hearted and there were areas which demanded investigation by the C.B.I. and which even if taken now may yield positive results and lead to the apprehension of the real culprit but the Court below brushed aside the prayer for further investigation and rejected the same in an extremely cursory manner and proceeded to summon the revisionist on the basis of wholly defective closure report, although there was no material on record warranting summoning of the revisionist.
13. Sri Chaturvedi further submitted that where the Magistrate feels further investigation is necessary on a consideration of broad possibilities of the case and total effect of the evidence and documents produced, further investigation can certainly be done as prescribed by law and mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation, if that would help the Court in arriving at the truth and do real and substantial as well as effective justice.
14. In the present case although the informant had highlighted the circumstances which indicated at the presence of Kishan Lal domestic help of Dr. Durrani or a third person at the place of occurrence like the pillow cover which was recovered from his house showed the presence of DNA of deceased Hemraj and presence of blood stains of both the deceased on the bottle of whisky found lying on the dining table in the revisionist''s house with distinct finger print impressions which were lifted by the police but which neither matched with those of the revisionist nor her husband, but the Court below strangely failed to acknowledge the same. Further investigation in these directions would have helped the Court to arrive at the truth. Sri Chaturvedi further submitted that C.B.I. should have also investigated how the deceased Hemraj''s mobile phone was found in Punjab.
15. Sri N.I. Jafri, learned Counsel for the C.B.I. refuting the submissions advanced on behalf of the revisionist submitted that the preliminary objection raised on behalf of the revisionist that the C.B.I. has no locus to oppose this application in revision on the ground that the C.B.I. happens to be one of the parties aggrieved by the impugned order as the closure report filed by the Investigating Officer of the C.B.I. with a prayer to close the case on account of insufficiency of evidence has been rejected by the trial Court by the impugned order and in case the C.B.I. opposes the revision the same shall amount to taking a stand by C.B.I. before this Court which is inconsistent with the stand taken by it before the Court below is wholly misconceived and untenable.
16. Sri Jafri further submitted that the Central Bureau of Investigation has been established by the Central Government in the exercise of its power under the Delhi Police Establishment Act, 1946 and C.B.I. is a probing agency which cannot be equated with a party to a lis. It is the duty of the C.B.I. to assist the Court and to ensure that the real accused is brought to the notice.
Sri Jafri advancing his argument in this regard next submitted that the C.B.I. is not bound by the conclusions of its officer who has probed a case and submitted a report alongwith his conclusions and hence, the C.B.I. has full authority to oppose tooth and nail the prayer made by the revisionist in this application in revision.
17. Sri Jafri further submitted that the Court below did not commit any mistake or error in refusing to grant the prayer made by the informant Dr. Rajesh Talwar in his protest petition for further investigation in the matter as no further investigation was required in the matter.
18. Sri Jafri next submitted that there is no material on record which may indicate at the presence of any outsider at the site of murder. The Investigating Officer in his closure report has given cogent reasons for refusing the prayer of the revisionist and Dr. Rajesh Talwar for touch DNA examination of certain exhibits with which no fault can be found.
19. Sri Jafri vehemently denied that there was Hemraj''s DNA on the pillow cover recovered from Krishna''s house. In fact pillow with pillow cover blue and white coloured belonging to deceased Hemraj was numbered as Exhibit-21 and the pillow cover recovered from Krishna''s house was numbered as Exhibit-26, in the report of Central Forensic Science Laboratory (CFSL) but the Centre for DNA Finger Printing Diagnostics (CDFD) wrongly identified the pillow with pillow cover belonging to deceased Hemraj as Y204C114, although as per correct numbering, pillow with cover should have been numbered C110 and Krishna''s pillow cover should have numbered as C114 as is borne out from the photographs of the two exhibits which shows the error in numbering committed by CDFD.
20. Sri Jafri further submitted on assigning correct numbers to the CDFD report to the two exhibits, the report of the CDFD tallies with the report of CFSL that no DNA was found on Krishna''s pillow cover and Hemraj''s DNA was found on Hemraj''s pillow cover.
21. Sri Jafri submitted that in view of the above the argument made by Sri Chaturvedi that Hemraj''s DNA was found on the pillow of Krishna is baseless.
He further submitted that technique of DNA finger printing is reliable and can provide conclusive proof in cases of heinous crimes like rape and murder even without witness, provided DNA sample is collected without wasting any time as the time lag only increases the chances of contamination leading to wrong conclusion.
He further submitted that touch DNA would not have been useful in the instant case as the stage where it was sought it was too late for collecting the samples specially when the site of crime had been altered.
22. Sri Jafri next submitted that the Special Judge, C.B.I. rightly summoned the revisionist on being satisfied from the perusal of the evidence collected by the C.B.I. and also the case diary that apart from Aarushi''s parents, Dr. Rajesh Talwar and the revisionist no one else was found in their residence when Aarushi and domestic help Hemraj were murdered.
He also argued that there was no evidence suggesting that apart from the revisionist and her husband in whose company deceased Aarushi was last seen alive and who were the first persons to discover her murder which had been committed inside their dwelling house, main door whereof was locked from within and there was no evidence on record to suggest that any body else had forcibly entered into their house and hence there was strong circumstantial evidence against the revisionist.
23. Sri Jafri further submitted that at the stage of the summoning only prima facie case is to be seen and since there was strong circumstantial evidence on record indicating at the involvement of the revisionist in the commission of the offence the Court below did not commit any error or illegality in summoning the revisionist to stand trial.
Sri Jafri replying to the submission made by Sri G.S. Chaturvedi that the Court below exceeded its jurisdiction in summoning the revisionist to face trial although she was never nominated as an accused in the FIR nor arraigned as one during investigation, submitted that where final report is submitted by police stating the complaint to be false or lack of sufficient evidence on record, notwithstanding the opinion of the police the Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose and at this stage a Magistrate has only to decide whether there is sufficient ground to proceed and not whether there is sufficient ground for conviction.
24. He further submitted that the cognizance is always taken of the offence and not the offenders and after taking cognizance u/s 190(1)(b) of the Code of Criminal Procedure the Magistrate has ample power to issue process not only against the persons whose names are mentioned in column 2 or 3 of the police report but also against such other person against whom the material on record makes out a case for the said purpose.
25. Sri Jafri also submitted that absence of motive at the stage of taking cognizance will not vitiate the cognizance or the summoning order because motive, if any, and if it is proved would supply a link in chain of circumstantial evidence but absence thereof cannot be a ground to reject the prosecution case.
26. Sri Anurag Khanna, Advocate also appearing for the C.B.I. adopted the same line of arguments as advanced by Sri Jafri and submitted that even where final report is submitted by police stating the complaint to be false notwithstanding the opinion of police., the Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose and at the stage of cognizance a Magistrate has only to decide whether there is sufficient ground to proceed.
27. He further submitted that the Magistrate at the stage of issuing process u/s 204 Code of Criminal Procedure after taking cognizance is not required even to record reasons yet in the instant case the Court below has while taking cognizance and summoning the revisionist to face trial has in the impugned order considered and referred to the strong circumstantial evidence against the revisionist and her suspicious acts, post occurrence.
28. He further submitted that as revisional powers belong to supervisory jurisdiction of a superior Court and while exercising revisional powers the Court has to confine itself to the legality and propriety of the order and also whether the subordinate Court has keep itself within the bounds of its jurisdiction and since in the present case the revisionist has failed to demonstrate that the Court below has either exceeded the bounds of its jurisdiction or the order passed by the Court below is illegal or improper, the present revision is liable to be dismissed in limine.
29. Sri Khanna next contended that in the present case a young girl was murdered in her dwelling house where she was residing with her parents with whom she was last seen alive prior to her murder and since only her parents, the revisionist and her father Dr. Rajesh Talwar were present inside the house at the time of her murder as subsequently it was found that Hemraj the domestic servant of the revisionist who was also present when the deceased Aarushi was last seen alive was also murdered at the same time as Aarushi and his dead body was hidden on the terrace of the house of Dr. Rajesh Talwar and the revisionist has not been able to offer any satisfactory explanation as to how Km. Aarushi was murdered in the her room which was adjacent to the revisionist''s bedroom and their rooms were separated by a thin plywood wall only without their knowledge and all the circumstances unerringly point out to the guilt of the revisionist and hence, it cannot be said that the circumstantial evidence against the revisionist was not sufficient, prima facie disclosing her involvement in the crime.
30. Sri D.R. Chaudhary, learned Government Advocate rebutting the submissions made by Sri Gopal Chaturvedi adopted the same line of arguments which has been adopted by the learned Counsel for the C.B.I.
He further submitted that the Magistrate is fully competent to summon the offenders whose complicity in the crime comes into light from the material available on record irrespective of the fact whether such person has been nominated as accused in the FIR during investigation or not and it is absolutely incorrect to suggest that such a person can only be summoned at the stage of Section 319 Code of Criminal Procedure
31. Before examining the validity of the impugned order I first proceed to deal with the preliminary objection raised on behalf of the revisionist that the C.B.I. cannot oppose the prayer made by the revisionist in this revision on the ground that the C.B.I. is as much aggrieved by the impugned order as the revisionist and it does not lie in the mouth of the C.B.I. to take a stand before this Court which runs contrary to the one taken by it before the Court below. In my opinion, the preliminary objection is without any basis. The C.B.I. is a probing agency and it cannot be said to be bound by the conclusions of its Investigating Officer. Further more, C.B.I. by no stretch of imagination can be termed as ''party'' to a lis. It is the duty of the C.B.I. to assist the Court and ensure that the real accused is brought to the book. The decisions relied upon by the learned Counsel for the revisionist in support of his preliminary objection are clearly distinguishable on facts and have no application to the instant case.
32. In the case of
33. In second case which has been relied upon by the learned Counsel for the revisionist
30. The interest of the Bar Council is to uphold standards of professional conduct and etiquette in the profession, which is founded upon integrity and mutual trust. The Bar Council acts as the custodian of the high traditions of the noble profession. The grievance of the Bar Council is to be looked at purely from the point of view of standards of professional conduct and etiquette. If any decision of the disciplinary committee of the Bar Council of India is according to the State Bar Council such as will lower the standards and imperil the high traditions and values in the profession, the State Bar Council is an aggrieved person to safeguard the interests of the public, the interests of the profession and the interests of the Bar.
The reasons given by the Apex Court in the case of Bar Council of Maharashtra (supra) cannot be pressed into service forecoming to the conclusion that the C.B.I. was a party aggrieved by the order of the Magistrate for the simple reason that it cannot be said to be adversely affected in any manner if the impugned order is affirmed by this Court.
34. The third case
35. The legal proposition expounded by the Apex Court in the case of Sasi Thomas v. State and Ors. 2006 (12) SCC 421, upon which reliance has been placed by Sri Chaturvedi also has no application to the facts of the present case. In the said case certain observations were made against the C.B.I. but on the basis of the said observations it cannot be said that the C.B.I. in the instant revision before this Court cannot take a stand which is different from the one taken by it before the trial Court by supporting the impugned order.
36. The preliminary objection having been decided against the revisionist, I now proceed to examine the validity of the impugned order in the background of the submissions made by the learned Counsel for the parties.
Coming to the first ground on which Sri Chaturvedi has challenged the impugned order that when in the closure report it was clearly stated that there were shortcomings in the evidence and murder weapons had not been recovered and due to insufficient evidence it was not possible to prove the offence u/s 302 or 201 I.P.C. against accused, the Court below instead of taking cognizance of the offence and issuing process ought to have ordered further investigation, the same in my opinion is without any merit.
37. The Court below after examining the entire material on record came to the conclusion that there was sufficient evidence on record prima facie indicating at the complicity of revisionist and Dr. Rajesh Talwar in the commission of offence and for taking cognizance and issuing process to the accused and accordingly declined to order further investigation. Whether the Court below was justified in refusing to order further investigation has to be examined in the backgrounds of the facts of this case and the parameters laid down by the Apex Court in its various decisions within which a Court can exercise its power to direct further investigation.
38. The Apex Court in
39. In
In the instant case main thrust of the contentions of learned Counsel for the revisionist is that the presence of the bottle of whisky on the dining table in the house of the revisionist which contained the blood stains of both the deceased and which had distinct finger print imprints which were lifted by the police and which did not match with those of either the revisionist or the co-accused Dr. Rajesh Talwar and the presence of Hemraj''s DNA on the pillow cover recovered from Krishna''s house which strongly pointed out at the presence of Krishna or a third person at the place of occurrence but the learned Special Magistrate did not attach much importance to the aforesaid aspect of the matter and rejected the prayer for further investigation.
40. As far as the assertion made on behalf of the revisionist that Hemraj''s DNA was found on the pillow of Krishna recovered from his house and thus further investigation should have been ordered in that direction is concerned, the same is without any basis. From the perusal of record and the submissions made by Sri Jafri which have been noted hereinabove it is apparent that the DNA of Hemraj was not found on Krishna''s pillow.
41. Now as far as revisionist''s contention that further investigation should have been made by the C.B.I. for ascertaining the identity of the person whose finger prints were found on the blood stained whisky bottle lying on the dining table of the revisionist''s house is concerned the same is also without any merit. Since, the blood stained whisky bottle was found on the dining table of the revisionist''s house which admittedly was locked from inside and apparently there is no evidence on record suggesting a forcible entry into or forcible exit from the house, explanation ought to have come from the side of the revisionist as to how a third person could enter her house without her knowledge, without any sign of forcible entry, commit the double murder, hide the dead body of deceased Hemraj on the terrace and without any sense of urgency gulps down whisky from the bottle which was found lying on the dining table in the revisionist''s house and thereafter leaves the house without her knowledge and without opening the door of the revisionist''s house which is found to be locked from inside next morning before the gruesome crime is discovered. Even, if it is assumed for the sake of arguments that a third person was present at the place of crime, under the circumstances of the case such person could not have made his way into Aarushi''s bedroom without the knowledge of the revisionist and her husband.
42. In my opinion, no further investigation was required in the aforesaid direction also. Similarly, any further investigation into the circumstances under which Hemraj''s cellphone was found in Punjab would not have led to any fruitful results as the cellphone was found after more than one year of the incident. It is also not the case of the revisionist that the investigation was unfair or tainted. In my opinion, the learned Special Magistrate rightly did not order further investigation.
43. Even otherwise presently the case of Dr. (Mrs.) Nupur Talwar is being considered by this Court and admittedly she had not filed any protest petition before the Court below against the closure report. It goes without saying that if the Court so feels that further investigation is required it can pass necessary orders in this regard even after cognizance has been taken and process has been issued.
44. Now I proceed to examine the second ground on which the order of the Special Judge, C.B.I. has been assailed by the learned Counsel for the revisionist Sri Gopal Chaturvedi has come up with a very attractive argument that Dr. (Mrs.) Nupur Talwar was never arrayed as an accused either in the FIR or during the investigation. He further submitted that in the closure report of the C.B.I. name of the revisionist neither finds mention in column 2 which contains the names of those accused who were either made accused in the FIR or during investigation but against whom no offence was disclosed in the opinion of the Investigating Officer after completion of investigation nor in column 3 which contains the name of those persons against whom the commission of offence is disclosed from the materials collected during investigation and although, after taking cognizance a Magistrate can issue process not only against those persons whose names are mentioned in column 3 of the charge-sheet but also against the persons whose names are mentioned in the column 2, but there is no provision under the Code of Criminal Procedure empowering a Magistrate to issue process against a person who was never arrayed as an accused at any stage of the investigation from the lodging of the FIR till the submission of the police report u/s 173(2) of Code of Criminal Procedure He further elaborated his arguments by submitting that such a person whose name is neither included in column 2 nor column 3 of the police report can only be summoned at the stage of Section 319(1) of Code of Criminal Procedure which stipulates that where, in the course of any inquiry into, or trial of, an offence, it apperas from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
45. The word ''accused'' has been interpreted by the Apex Court as well as by this Court in several decisions.
In
46. In
47. This Court in
48. From the perusal of the aforesaid precedents it emerges that an accused is a person against whom an allegation is made that he has committed an offence and whose liberty is actually restrained and he is arrested by a competent authority on well founded information or formal accusation and who is taken in custody and interrogated on that basis even if his name was not mentioned as an accused in the FIR, and against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution. The word ''accused'' has also been defined under the Explanation to Section 273 of Code of Criminal Procedure as including a person in relation to whom any proceeding under Chapter 8 of Code of Criminal Procedure has been commenced. Now applying the aforesaid tests for determining whether the revisionist''s falls within the ambit of the word ''accused'' for the purpose of issuing process u/s 204 Code of Criminal Procedure I find that she was neither named in the FIR nor she was taken into custody and interrogated during investigation nor any formal accusation relating to the commission of any offence had been levelled against her nor any proceedings were drawn against her under Chapter 8 of the Code of Criminal Procedure, hence, I find that the submission made by Sri Gopal Chaturvedi in this regard has force to the extent that she was neither an accused on the date of the filing of the FIR nor till the date of the filing of the closure report by the C.B.I.
49. Now the question which arises before this Court for consideration is that whether process can be issued against a person who is neither arrayed as an accused at any stage of investigation nor whose name figures either in column 2 or column 3 of the police report submitted u/s 173(2) of Cr.P.C, if it appears to the Magistrate after taking into consideration the entire material on record before him that the involvement of such a person in the crime is prima facie indicated.
50. In
In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; one he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.
51. In
52. In
8. In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the Respondents. In so doing the Magistrate did not in our judgment exceed the power vested in him under law.
The Apex Court again in the case of India Carat Pvt. Ltd. v. State of Karnataka and Anr. S.C. Cr.R. 1989 646 in paragraphs 13 and 14 of the said judgment held as hereunder:
13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present u/s 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint u/s 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process u/s 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down u/s 200 or Section 202, he may order an investigation to be made by the police u/s 156(3). When such an order is made, the police will have to investigate the matter and submit a report u/s 173(2). On receiving the police report the Magistrate may take cognizance of the offence u/s 190(1)(b) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report u/s 178(2) will contain the facts discovered or un-earthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act u/s 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.
14. Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second Respondent and ordered issue of process without first examining the Appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence u/s 190(1)(b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abhinandan Jha and Ors. v. Dinesh Mishra 1967 (3) SCR 669 and
53. In
54. The Apex Court in Uma Shankar Singh v. State of Bihar and Anr. 2010 (3) SCC 1397, reiterated the legal principles enunciated by the Apex Court in the cases of India Carat Pvt. Ltd. (supra) and Abhinandan Jha (supra).
From the aforesaid binding the precedents it is settled that when a police report is submitted u/s 173(2) of Code of Criminal Procedure closing the case finally against all the accused or charge-sheeting some of the accused and submitting final report against the remaining, the Magistrate is not bound by the conclusions of the Investigating Officer and if upon perusal of the material collected during investigation the Magistrate is satisfied that prima facie case is disclosed against such accused also in whose favour final report has been filed, he is empowered after taking cognizance to summon such accused also. In all the cases which have been referred to hereinabove, the persons who were summoned as accused after taking cognizance by the Magistrate had been arraigned as accused at some stage of the investigation although final report was submitted in their favour after completion of the investigation. Neither the revisionist nor the opposite parties have been able to place any case before this Court in which a person who was not arrayed as accused at any stage of the investigation had been summoned by the Magistrate after taking cognizance and his or her summoning was held to be illegal or otherwise.
55. The reliance placed by Sri Gopal Chaturvedi in support of his above contention on Kishun Singh and Ors. v. State of Bihar 1993 SCC 470 and Dharam Pal v. State of Haryana 2004 (13) SCC 9 , is totally misconceived. In the case of Kishun Singh''s (supra) the Sessions Judge had summoned certain persons as additional accused in the exercise of his power u/s 319 Code of Criminal Procedure against whom charge-sheet had not been submitted without any evidence being adduced before him. The Apex Court while granting leave held in the said case that although the stage of Section 319 of Code of Criminal Procedure had not been reached on the materials available, the Sessions Judge was within his jurisdiction in taking cognizance against the said persons u/s 193 of the Code. Thus, the ratio of Kishun Singh''s case (supra) does not apply to the facts of the present case similarly. The case of Dharam Pal (supra) is of no help to the revisionist as in the said case the three Judges Bench of the Apex Court doubting interpretation of Section 193 of Code of Criminal Procedure reached by another three Judges Bench of the Apex Court in
56. After having carefully examined the submissions advanced by the learned Counsel for the parties and the law cited on the subject, I find that even though the revisionist was never arrayed as an accused it cannot be held that she could not have been summoned to face trial by the Court below on the basis of the strong circumstantial evidence on record indicating at her complicity in the commission of the offence.
57. In the case in hand the learned Special Magistrate after going through the closure report and the materials collected during investigation and taking note of the circumstantial evidence on record which in his opinion pointed out at the revisionist''s complicity in the commission of the offence, came to the conclusion that there was sufficient evidence on record prima facie showing revisionist''s involvement in the commission of the offence and for sending her to trial. Once the learned Magistrate reached the aforesaid conclusion, in my opinion, the revisionist instantly became ''an accused'' or ''an offender'' and the learned Magistrate did not commit any error in issuing process against her. I stand fortified, in my view by the law laid down by the Apex Court in Raghubans Dubey (supra) wherein the Apex Court held that the Magistrate takes cognizance of an offence and not the offenders and once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. From the aforesaid judgment it follows that the Magistrate who takes cognizance of an offence u/s 190(b) of Code of Criminal Procedure on the basis of a police report is not bound by the conclusions of the Investigating Officer and he is empowered to issue process not only against those persons whose names are mentioned in column 2 or column 3 of the police report but also against such person also who in the opinion of the Magistrate is an offender.
58. Learned Counsel for the revisionist failed to demonstrate that the satisfaction recorded by the Magistrate in the impugned order that there was prima facie case against the revisionist for sending her to trial is either perverse or based upon irrelevant considerations. Even if the statements of the revisionist and her husband Dr. Rajesh Talwar recorded during investigation are excluded from consideration on account of being inadmissible u/s 25 of the Indian Evidence Act, there is sufficient circumstantial evidence on record on the basis of which the summoning of the revisionist can be sustained.
59. Learned Counsel for the revisionist has further failed to satisfy the Court that the order passed by the Court below is improper or the Court below exceeded its jurisdiction in taking cognizance and issuing process against her.
There is no provision under the Code of Criminal Procedure which prohibits the Magistrate to issue process against a person whose name is not mentioned in the police report submitted u/s 173(2) of Code of Criminal Procedure despite there being sufficient material on record prima facie showing participation of such person in the commission of an offence.
60. The impugned order is based upon relevant considerations and supported by cogent reasons which requires no interference on the basis of the grounds urged by the revisionist. This application in revision lacks merit and is accordingly dismissed.
However, considering the facts of the case it is directed that in case the revisionist surrenders before the Special Judicial Magistrate (C.B.I.), Ghaziabad and applies for bail within a period of two weeks from today her bail application shall be dealt with in accordance with the law expeditiously.
